MICHAEL A. BOWEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Bowen appealed his conviction for driving with a revoked license as a habitual offender, arguing on direct appeal that he did not qualify as a habitual traffic offender because he had only two qualifying convictions within five years. The Florida Fifth District Court of Appeal affirmed the conviction, holding that three convictions within five years is not a statutory requirement for the offense under section 322.34(5).
The court held that proof of three enumerated convictions within a five-year period is not required to establish a violation of section 322.34(5), and that Huss v. State has no application to prosecutions under section 322.34(5) for driving while one's license is revoked as a habitual offender. The court further held that Bowen's complaint, though couched as an illegal sentence, was actually a challenge to the validity of his guilty plea, which is not cognizable on direct appeal.
[1] A claim that a guilty plea should be set aside because the defendant did not qualify for the charged offense is not cognizable on direct appeal when the defendant has not…
[2] Proof of accumulating three enumerated convictions within a five-year period preceding the offense is not required to establish a violation of the statute prohibiting dri…
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Join FLexlaw to unlock all legal intelligence“Although couched as an illegal sentence, Bowen's complaint is that his plea of guilty should be set aside because he did not qualify for the charge. This claim is not cognizable on direct appeal.”
Establishes that challenges to the validity of a guilty plea cannot be raised on direct appeal and require a motion to withdraw the plea.
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Join FLexlaw to unlock all legal intelligenceBowen was charged with driving while license revoked as a habitual offender pursuant to section 322.34(5), Florida Statutes. He pled guilty with a pro…
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GRIFFIN, J.
This is a direct appeal of a judgment and sentence entered after defendant, Michael A. Bowen [“Bowen”], pled guilty to driving while license revoked as a habitual offender. Bowen was charged by information with driving while license revoked as an habitual offender, pursuant to section 322.34(5), Florida Statutes (2001):
Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
He pled guilty as charged with the understanding that the prosecutor would recommend sixteen months in the Department of Corrections. Bowen was sentenced on February 26, 2002 to sixteen months in the Department of Corrections.
On March 26, 2002, before the time for taking an appeal had expired, Bowen filed a pro se motion to correct an illegal sentence, arguing that he could not be considered a habitual traffic offender within the meaning of section 322.264, Florida Statutes, because he had only two qualifying traffic convictions within the preceding five years.
Bowen filed a notice of appeal before his motion could be ruled upon. He then filed an amended motion to correct an illegal sentence, stating that the motion was made pursuant to rule 3.800(b)(2) due to his pending appeal. The motion again argued that Bowen did not qualify as an habitual offender, since he had only two convictions within a five-year period. In addition, he contended that convictions obtained prior to October 1, 1997 could not be used as qualifying offenses under Huss v. State, 771 So. 2d 591 (Fla. 1st DCA 2000).
First, we note that Bowen has not moved to withdraw his plea. Although couched as an illegal sentence, Bowen’s complaint is that his plea of guilty should be set aside because he did not qualify for the charge. This claim is not cognizable on direct appeal. Griffin v. State, 820 So. 2d 906 (Fla.2002), Caples v. State, 790 So. 2d 1143 (Fla. 5th DCA 2001).
Second, contrary to Bowen’s assumption, proof that he had accumulated three of the enumerated convictions within a five-year period preceding his conviction is not required to establish a violation of section 322.34(5), Florida Statutes (2000). See Arthur v. State, 818 So. 2d 589, 590-91 (Fla. 5th DCA 2002).
Finally, Huss has no application to a prosecution - under section 322.34(5) for driving while one’s license is suspended as a habitual offender. See Simmons v. State, 824 So. 2d 327 (Fla. 1st DCA 2002).
AFFIRMED.
HARRIS and SAWAYA, JJ., concur.
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Kallelis v. State, 909 So. 2d 544 (Fla. 4th DCA 2005)…. 2d 589 (Fla. 5th DCA 2002), as support for its position. However, that case is distinguishable because Arthur’s driving record, admitted into evidence, showed the requisite convictions to qualify him as a habitual traffic offender. Bowen v. State, 833 So. 2d 288 (Fla. 5th DCA 2002), which relies on Arthur, is also cited by the state. However, there are insufficient facts recited in that opinion to determine its applicability here. [*546] Because the state failed to present a prima facie case, as the DMV rec…
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Warren v. State, 856 So. 2d 1095 (Fla. 5th DCA 2003)…ked as a habitual traffic offender and that he drove a vehicle upon the highways of the State of Florida. See Arthur v. State, 818 So. 2d 589 (Fla. 5th DCA 2002) (en banc), review denied, 839 So. 2d 697 (Fla.2003). As we explained in Bowen v. State, 833 So. 2d 288, 289 (Fla. 5th DCA 2002), “Huss has no application to a prosecution under section 322.34(5) for driving while one’s license is suspended as a habitual offender.” Warren’s remaining grounds are merit-less and do not warrant discussion. AFFIRMED. O…
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Pressley v. State, 837 So. 2d 531 (Fla. 5th DCA 2003)…PER CURIAM. AFFIRMED. See Bowen v. State, 833 So. 2d 288 (5th DCA 2002); Simmons v. State, 824 So. 2d 327 (Fla. 1st DCA 2002). THOMPSON, C.J., SAWAYA and MONACO, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Huss v. State, 771 So. 2d 591 (Fla. 1st DCA 2000)
- Griffin v. State, 820 So. 2d 906 (Fla. 2002)
- Arthur v. State, 818 So. 2d 589 (Fla. 5th DCA 2002)
- Caples v. State, 790 So. 2d 1143 (Fla. 5th DCA 2001)
- Simmons v. State, 824 So. 2d 327 (Fla. 1st DCA 2002)